Information demands lay siege to confidentiality
Futurologists of the legal profession concentrate chiefly on the impact of technology and alternative structures when predicting what will happen next. There is an assumption that the activities of lawyers will continue as before, but delivered in a new way. However, I want to describe another trend which is beginning to impact on lawyers’ daily activities.
It began with the money laundering legislation. For the first time, lawyers were seen as gatekeepers to information which the authorities badly wanted to access. As a result, and in the aftermath of the 9/11 attacks, legislation was passed in Europe which breached the wall of the confidentiality of client information, and forced lawyers to provide those authorities with secret information, in this case about suspicious activity by the client in relation to money laundering. There continues to be resistance to this notion, with two cases currently before the European Court of Human Rights (Michaud and Monaco), which are seen as the last resort in opposing the principle of lawyer reporting.
But once the taboo is broken the formerly unknown becomes an accepted new way. And so it has proved. In two new areas, there are again mutterings against the wall of client confidentiality. The first is in the field of the international fight against corruption. There was a 2011 report by the staff of the International Bank for Reconstruction and Development/The World Bank as part of the Stolen Asset Recovery Initiative.
The section related to ‘Attorneys and Claims of Attorney-Client Privilege’ in the Executive Summary shows the danger ahead: ‘Policymakers also need to address the problem of gaining access to the information held by service providers and, in particular, the issue of legal privilege. When investigators seek to access information held by attorneys regarding the establishment and operation of a corporate vehicle by one or more of their clients, the attorneys frequently seek to justify their refusal to divulge such information by invoking attorney-client privilege (or ‘legal professional privilege’). Investigators should guard against the unjustified use of this privilege.’
The second initiative comes in the field of human rights and corporate social responsibility (CSR). The special representative of the UN secretary-general for business and human rights, John Ruggie, prepared a Protect, Respect and Remedy policy framework on Business and Human Rights – essentially, the basic text on CSR at an international level – which was followed by the UN Human Rights Council unanimously endorsing the Guiding Principles on Business and Human Rights in 2011. A core component is that companies, including law firms, should both know and show that they are respecting human rights.
The ‘know’ is covered by client due diligence, a notion which for lawyers comes straight from the money laundering legislation. But can law firms ‘show’ that they have respected human rights matters in relation to their representation of clients without breaching client confidentiality? It looks as if this might be another form of lawyer reporting on clients, and in this case when those clients might not have breached the criminal law.
The pattern is clear. Lawyers are no longer seen as professionals dealing individually with clients and their interests within a framework of the rule of law, where everyone is entitled to confidential legal advice. They are now seen as gatekeepers to secrets which prosecuting authorities or campaigners want to access. The background to lawyer-client confidentiality – and its rootedness in a democratic society governed by the rule of law – becomes unimportant, and is not weighed properly in the balance against the importance of stopping a particular kind of behaviour which the authorities or campaigners want to stamp out.
I should confirm here that the behaviour to which all three initiatives I have mentioned are addressed – money laundering, corruption, breaches of human rights – is reprehensible and wrong. I should also state that the two new examples involve recommendations or guidelines and not obligations on lawyers to breach confidentiality. But the history of human nature shows that the one often leads to the other.
This is the future which must be guarded against. Turning a lawyer into a gatekeeper is to strip the profession of all context, morality and nuance. A guardian of client’s rights within a balanced and democratic legal system guaranteeing access to justice for all becomes in this new narrative simply a shady bouncer with a key who is barring the door behind which certain information is hidden. Once lawyers accept this change of role then there will be a flood of demands for access to the information. That spells the decline of our profession.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. blogs weekly for the Gazette on European affairs